Lawsuit filed to restore abortion access in Ohio

Five days after the U.S. Supreme Court overturned Roe v. Wade, Ohio’s abortion clinics are suing to restore access to abortions in the state.

Attorneys for the state’s abortion providers argue that the Ohio Constitution goes farther than the U.S. Constitution in protecting residents’ health care choices, including abortions, according to a lawsuit filed at the Ohio Supreme Court Wednesday.

The lawsuit asks justices on the Ohio Supreme Court to find Ohio’s newly imposed ban on abortions after six weeks unconstitutional and restore access to abortions up to 22 weeks after the patient’s last period.

“This sweeping measure, which prevents nearly every pregnant person from accessing essential care, is blatantly unconstitutional under Ohio’s state constitution which has broad protections for individual liberties,” said attorney Freda Levenson, legal director for the American Civil Liberties Union of Ohio.

Very few abortions are performed before six weeks – less than 1.5% of abortions at Preterm-cleveland in 2021. That’s in part because patients often don’t realize they’ve missed their period until four weeks into a pregnancy.

“A ban on abortion at and after six weeks would only allow two weeks, at most, for a woman to learn that she is pregnant, decide whether to have an abortion and to seek and obtain abortion care,” attorneys argued.

The legal challenge represents a change in tactics for abortion advocates. Nearly all previous lawsuits were filed in federal court, but that option is off the table after the U.S. Su

preme Court overturned Roe v. Wade.

Four Republicans and three Democrats comprise the Ohio Supreme Court. Chief Justice Maureen O’connor, a Republican, has ruled against Gop-drawn maps for state and congressional districts. But there’s no guarantee she would side with abortion advocates’ legal arguments here.

And Ohio Right to Life President Mike Gonidakis says the lawsuit was filed in the wrong court.

“Of course, any first-year law student knows that the litigation is required to be filed in the court of common pleas,” he said. “Our heartbeat law will continue to save lives as it is constitutional pursuant to the recent Dobbs decision from the United States Supreme Court.”

Ohio Attorney General Dave Yost said in a statement that the lawsuit is wrong on Ohio law. “Abortion is not in the Ohio Constitution.”

The American Civil Liberties Union, the ACLU of Ohio, Planned Parenthood Federation of America, and the law firm Wilmerhale filed the lawsuit Wednesday on behalf of Preterm-cleveland; Planned

“Each day that S.B. 23 is in effect, women who are currently pregnant and need abortion care – including women who had already scheduled that care – are being turned away at clinics and denied their fundamental right to an abortion.” Attorneys for Ohio’s clinics

Parenthood Southwest Ohio Region; Planned Parenthood Greater Ohio; Women’s Med; Northeast Ohio Women’s Center; Toledo Women’s Center and the Cincinnati clinic’s medical director.

What’s their argument?

Attorneys argue that the Ohio Constitution protects individual liberties and healthcare choices – above and beyond what the U.S. Constitution details.

They point to a 2011 constitutional amendment to block the implementation of former President Barack Obama’s healthcare overhaul as evidence that Ohioans overwhelmingly support the “protection of individual autonomy in medical decision-making.”

“The history of the Ohio Constitution makes clear that individual liberties and limits on legislative power are core values at the heart of the Constitution, reinforcing that the text should be interpreted to protect the right to abortion,” the lawsuit alleges.

Attorneys also underscore that the health risks of pregnancy far exceed medical complications from abortions. These health problems disproportionately harm Black and lower-income women. And there are other costs: “New mothers’ earnings drop after they give birth and they do not fully recover to prepregnancy earning levels.”

Even if Ohio has an interest in protecting life, there are less restrictive ways of going about it, according to the lawsuit. Ohio could improve prenatal care, expand access to medical insurance or provide financial assistance for prenatal vitamins.

“Such measures would do far more to advance the health of pregnant women without depriving them of a fundamental right,” according to the filing.

What happens next?

The Ohio Supreme Court will hear legal arguments from both sides to determine if Ohio’s six-week ban should be blocked temporarily.

Attorneys for Ohio’s clinics have asked the court to make that decision quickly.

“Each day that S.B. 23 is in effect, women who are currently pregnant and need abortion care – including women who had already scheduled that care – are being turned away at clinics and denied their fundamental right to an abortion,” attorneys argue.

But abortion opponents say this lawsuit is on shaky ground.

“The ACLU and Planned Parenthood are trying to create an abortion mandate in the Ohio Constitution out of thin air,” Center for Christian Virtue President Aaron Baer said. “To suggest our state Constitution requires that abortion clinics are able to destroy unborn life is foolish and dangerous.”

Ohio isn’t the only state facing a legal challenge. Friday’s U.S. Supreme Court decision triggered a slew of lawsuits across the nation. A Louisiana court blocked enforcement of the state’s trigger ban to eliminate abortion there. Abortion advocates in Kentucky and Utah filed lawsuits to restore access to the procedure.

Read the lawsuit here:

Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Akron Beacon Journal, Cincinnati Enquirer, Columbus Dispatch and 18 other affiliated news organizations across Ohio.